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Webe v. Fernandez

Court of Appeals of Texas, Second District, Fort Worth

March 28, 2019

Richard A. Weber, Eric Elam, and Joe Palmer, Appellants
Frank Fernandez, Appellee

          On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-299878-18

          Before Gabriel, Pittman, and Bassel, JJ.



         I. Introduction

         This interlocutory appeal arises from the trial court's order denying Appellants Richard A. Weber's, Eric Elam's, and Joe Palmer's Texas Citizens Participation Act (TCPA) motion to dismiss.

         Many understandably find the tenor of today's political discussion unpleasant. But the TCPA protects those who speak on matters of public concern. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. Undoubtedly, the statements in this case- directed toward a public official, Appellee Frank Fernandez, who had recently pled guilty to a criminal offense, resigned from public office, and continued to participate in political activities-fall within the ambit of the TCPA. The legislature has made its decision that the subjects of legal actions falling within the ambit of the TCPA may immediately put those bringing the action to the task of establishing "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). And the burden to make the prima facie showing in this case is enhanced by another rule of law designed to foster free-though perhaps unpleasant-speech. That rule requires clear and specific proof by a plaintiff who is a public figure that the defamatory statements were made with actual malice.

         Here, the allegedly defamatory statements at issue were not made of whole cloth-the public record demonstrates that although the trial court deferred an adjudication of guilt, Fernandez had recently pleaded guilty to a charge of misdemeanor theft. See Tex. Penal Code Ann. § 31.03(e)(3). Instead, Fernandez challenges how Appellants characterized the disposition and nature of the offense that no one disputes occurred. We agree that Appellants made statements that mischaracterized both the disposition and the nature of the offense and that those mischaracterizations appear blatant to lawyers and judges who devote themselves to parsing the distinctions that Appellants misstated. But we do not analyze the statements through a lens so finely tuned to the intricacies of the law. Our lens focuses on whether the statements were substantially true as perceived by a person of ordinary intelligence. And again, at the TCPA stage, Fernandez carries the burden to establish by clear and specific prima facie proof that Appellants made the statements while acting with actual malice.

         These principles guide our resolution of this appeal in two ways. First, analyzed through the lens of substantial truth perceived by a person of ordinary intelligence, we conclude that the mischaracterization of the disposition of the criminal offense was not defamatory. Second, we conclude that Fernandez failed to present clear and specific evidence to make a prima facie showing that Appellants mischaracterized the offense while acting with actual malice. But because Appellants failed to challenge Fernandez's claim for intentional infliction of emotional distress (IIED) in their TCPA motion to dismiss or on appeal, we affirm in part and reverse and remand in part.

         II. Background

         A. Factual Background

         This controversy began with a conflict between Fernandez and Janie Woodside Joplin. Fernandez is a former councilmember of the City of Kennedale; Joplin is a current councilmember of the City of Kennedale. According to Fernandez, his relationship with Joplin has been problematic since 2016 when Joplin's husband "physically accosted" him, and Fernandez in turn filed charges against him.

         Fernandez's service as a councilmember ended in 2017 after legal troubles of his own. While still a councilmember, he was charged with the offense of Class A misdemeanor theft for allegedly stealing a silver bar worth more than $750 but less than $2, 500. See id. As part of a plea bargain, Fernandez pleaded guilty to the offense. He was placed on deferred adjudication-community supervision, was fined $500, and was ordered to pay court costs. Fernandez resigned from his position as a councilmember around the same time that he pleaded guilty.

         Fernandez claims that when he subsequently became involved in an effort to obtain signatures to support a petition to recall Joplin (who had recently been elected as a councilmember), Appellants and Joplin began "a smear campaign" against him by using a variety of media to publish "false and defamatory statements"-that he is "a convicted criminal" and a "known thief," that he "committed robbery while being a Kennedale city council member," that "he lied when gathering signatures for a Kennedale political campaign," and that he took part in "corruption and cover-up." Fernandez also alleged that Elam stopped him in the middle of the road and began filming him as an "intimidation tactic."

         B. Procedural Background

         Fernandez filed a lawsuit against Appellants and Joplin, asserting claims for statutory defamation by libel, common law defamation by libel and libel per se, defamation by slander, and IIED.[1] Fernandez also sought temporary and permanent injunctive relief. Fernandez filed a supplement to his pleading in which he asserted a claim against Appellants for conspiracy to defame.

         Fernandez complained about the following communications from Appellants that he contends are defamatory:

4.8 Defendants . . . falsely told two of Fernandez's neighbors that Fernandez was a convicted criminal. Said two neighbors were [formerly] friendly and cordial to Fernandez, but they no longer speak with Fernandez since Defendants made the false and defamatory statements. Elam has stopped in the middle of the road and filmed Fernandez as an intimidation tactic. Joplin, Elam[, ] and Weber hired Palmer to assist them in their harassing campaign against Fernandez.
4.9 Elam sent and published a bullying text message about Fernandez to Erin Matthews on a Facebook group aimed at Kennedale residents. Always the gentleman, in the message 'internet tough-guy' Elam insulted Ms. Matthews in a threatening manner (warning said lady not to "run your slobbering mouth"), and falsely stating that "Frank [Fernandez] is a convicted criminal, he [committed] robbery while being a Kennedale city council member." Fernandez is not a convicted criminal, and has never even been charged with (much less committed) robbery.
4.10 Elam, Joplin[, ] and Weber posted false and defamatory statements about Plaintiff on "Kennedale Voters Group[, "] an electronic Facebook group/forum that Elam, Joplin, and Weber served as administrators for. Elam, Joplin, and Weber caused a video to be published on Facebook's Kennedale Voters Group, bearing a heading "Mayor is Associated with convicted robber before and after being found guilty[, "] which described the Kennedale Mayor's association with Fernandez, falsely stating that Fernandez was a "convicted robber" and had been "found guilty[, "] neither of which were true.
4.12 Texas Debt Watch, an online Facebook group run by Palmer, published a video online with the heading "Store Owner Rejoices as Profits Go Back to Normal After Former City Councilman's Foiled Heist." Said video, published by Palmer online, also described Fernandez as a "known thief[, "] that "he stole from somebody[, "] and that he lied when gathering signatures for a Kennedale political campaign. After receiving a criminal trespassing warning from the Kennedale Police Department, Palmer also implied on a Facebook video that [the] Mayor and Fernandez took part in corruption and cover-up. [Emphasis added.]

         Appellants filed a TCPA motion to dismiss, contending that Fernandez's claims were based on, related to, or in response to the exercise of their rights of free speech.[2] See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Fernandez filed a response and objections to Appellants' declarations that were attached to their motion. The trial court considered the motion to dismiss by submission before signing an order indicating that it would sustain Fernandez's objections to Appellants' declarations, except that Appellants would be permitted to cure the formal defects in the declarations.[3] The order then stated that the failure to cure the defects would result in the denial of the TCPA motion to dismiss but that if the defects were cured, the trial court would grant the motion to dismiss.

         Appellants filed "improved" declarations and submitted a proposed order granting the motion to dismiss, but the trial court signed an order denying the motion. The order stated that the trial court had considered "the pleadings, the evidence and arguments of counsel," and while the trial court acknowledged its prior order indicating that it would grant the motion if the declarations' formal defects were cured, the trial court stated that it "undertook a complete review of the matter and decided to [deny] the motion."

         III. Issues on Appeal

         Appellants raise three issues challenging the denial of their TCPA motion to dismiss: (1) the trial court erred by deciding that Fernandez's defamation claims against them are not based on, related to, or in response to the exercise of their rights of free speech; (2) the trial court erred by deciding that Fernandez had established by clear and specific evidence a prima facie case for each element of his defamation claims, including that Appellants acted with actual malice because they contend Fernandez is a public figure; and (3) the trial court erred by deciding that Appellants had failed to establish by a preponderance of the evidence each element of their defense to the defamation claims. Although he disagrees with each contention, Fernandez focuses the majority of his brief on his contention that because he is no longer a city councilmember, he should not be considered a public figure and therefore should not be subjected to the heightened intent element of actual malice to establish his defamation claims.

         IV. Standard and Scope of Review

         We review a trial court's ruling on a motion to dismiss under the TCPA de novo. United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 511 (Tex. App.-Fort Worth 2014, no pet.). In our de novo review, "the unique language of the TCPA" dictates that we decide the initial question of the TCPA's applicability based on a "holistic review of the pleadings." Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018). After resolving the initial question of applicability, we review a trial court's TCPA determination based on "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).

         V. Discussion

         A. The Texas Citizens Participation Act

         The TCPA "protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). The purpose of the TCPA is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002.

         "To effectuate the [TCPA's] purpose, the [l]egislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights." ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). Under the first step,

a movant [defendant] seeking to prevail on a motion to dismiss under the TCPA has the burden to "show . . . by a preponderance of the evidence that the [nonmovant's] legal action is based on, relates to, or is in response to the [movant's] exercise of (1) the right of free speech; (2) the right to petition; or (3) the right of association."[4]

Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 872 (Tex. App.-Austin 2018, pet. Filed) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)). The Supreme Court of Texas holds that because the basis of a legal action is determined by the plaintiff's allegations, "[w]hen it is clear from the plaintiff's pleadings that the action is covered by the Act, the defendant[s] need show no more" to satisfy the first step of the TCPA analysis and bring themselves within the TCPA's protections. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

         "Under the second step, if the trial court determines that the movant [defendant] has met his burden to show that the TCPA applies, the burden shifts to the nonmovant [plaintiff] to establish 'by clear and specific evidence a prima facie case for each essential element of the claim in question.'" Grant, 556 S.W.3d at 872-73 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). A "prima facie case" refers to "evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Lipsky, 460 S.W.3d at 590. It is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. Clear and specific evidence ultimately means that the "plaintiff must provide enough detail to show the factual basis for its claim." Id. at 591.

         But even if the nonmovant/plaintiff satisfies this step-two burden and presents a prima facie case by clear and specific evidence, "the trial court must dismiss the legal action if the [defendant] establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff's] claim." Grant, 556 S.W.3d at 873 (internal quotation marks omitted); see Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d) ("Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.").

         Finally, the TCPA provides that if the trial court grants a TCPA motion to dismiss, it "shall" award the moving party

(1)court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2)sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). Our court has held that "[a]lthough the trial court [is] required by section 27.009[(a)(2)] to award some amount of sanctions, it ha[s] the discretion to award only a nominal amount, such as $1.00," as long as the mandatory award of attorney's fees and costs is already sufficient to deter the plaintiff from bringing similar actions. Rich v. Range Res. Corp., 535 S.W.3d 610, 613, 615 (Tex. App.-Fort Worth 2017, pet. denied).

         B. Analysis of Step One

         In their first issue, Appellants argue that the trial court erred by concluding that they had failed to establish their step-one burden-that is, Appellants contend that they established by a preponderance of evidence that Fernandez's lawsuit is based on, relates to, or is in response to their exercise of their rights of free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). We agree. The lawsuit is related to the right of free speech because it involved communications made in connection with a matter of public concern.

         The TCPA defines the "exercise of the right of free speech" as consisting of "a communication made in connection with a matter of public concern." Id. § 27.001(3). The TCPA defines a "matter of public concern" as including an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. Id. § 27.001(7). The TCPA defines a "communication" as "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1).

         Fernandez does not argue that the statements to his neighbors or those contained in the videos, Facebook message, and postings are not "communications" as defined by the TCPA, and our research reveals no reason to conclude otherwise. See id.; Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 798 (Tex. App.-Fort Worth 2018, pet. filed) (explaining that the breadth of the TCPA's definition of communication extends the application of the TCPA to "[a]lmost every imaginable form of communication, in any medium" (quoting Adams, 547 S.W.3d at 894)). Thus, we focus our analysis on whether the communications were made in connection with a "matter of public concern."

         Fernandez's defamation claims are predicated on statements to Fernandez's neighbors that he was a "convicted criminal"; the message that Fernandez is a convicted criminal who committed "robbery"; posting a video on a Facebook group page and captioning it with the statement that Fernandez is a "convicted robber" who had been "found guilty"; posting a video on a different Facebook group page stating that Fernandez was a "known thief" who "stole from somebody"; the video itself which stated that Fernandez had engaged in a "failed robbery"; and the insinuations in the video that Fernandez was part of "corruption" and a "cover-up" when he resigned from city council and that he had lied while gathering signatures for a political campaign. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Thus, Fernandez's pleading establishes that his defamation claims are based on, related to, or are in response to communications. See Cavin v. Abbott, 545 S.W.3d 47, 69 (Tex. App.-Austin 2017, no pet.) (concluding that the plaintiffs' claims "relate to" the defendants' "exercise of the right of free speech" because "there is some sort of connection, reference, or relationship" between the claims and the exercise of the right of free speech).

         We agree with Appellants that the challenged statements are communications made in connection with a matter of public concern because they were made during a political contest-i.e., a petition to recall an elected councilmember-and because they are related to the charge and prosecution of Fernandez for the crime of theft while he was a city councilmember, as well as to the circumstances surrounding his resignation from the city council. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7); Lane v. Franks, 573 U.S. 228, 241, 134 S.Ct. 2369, 2380 (2014) (explaining that "[s]peech involves matters of public concern when it can be fairly considered as relating to any matter of political . . . concern to the community" (internal quotation marks omitted)); Adams, 547 S.W.3d at 896, 898 (holding appellate court erred in concluding that defendants failed to meet their step one TCPA burden, in part, because plaintiff's allegation that a developer and HOA repeatedly violated the law and engaged in corrupt or criminal activity is a matter of public concern); Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) ("Public matters include, among other things, 'commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions.'" (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1045 (1975))).

         Therefore, because we conclude that Appellants satisfied their burden under step one and demonstrated by a preponderance of evidence that Fernandez's defamation claims are based on, related to, or in response to Appellants' exercise of their right of free speech, we sustain Appellants' first issue.[5]

         C. Analysis of Step Two

         Having concluded that Appellants satisfied step one, we now turn to Appellants' second issue-that Fernandez failed to carry his burden and establish by clear and specific evidence a prima facie case for each essential element of his defamation claims.

         "To maintain a cause of action for defamation, the plaintiff must establish that the defendant (1) published a false statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement." Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex. App.-Fort Worth 2006, pet. denied); see also Lipsky, 460 S.W.3d at 593; WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Ghrist v. MBH Real Estate LLC, No. 02-17-00411-CV, 2018 WL 3060331, at *4 (Tex. App.-Fort Worth June 21, 2018, no pet.) (mem. op.). Fernandez's burden turns on whether he occupied the status of a public figure at the time of publication of Appellants' statements, which we conclude that he did.

         1. Public Figure or Public Official Status

         To succeed on a defamation claim, private plaintiffs must prove that the defendant was at least negligent, whereas public officials and public figures must establish a higher degree of fault-they must prove that the defendant published a defamatory falsehood with actual malice, that is, with "knowledge that it was false or with reckless disregard of whether it was true or not." Neely v. Wilson, 418 S.W.3d 52, 69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004).

          In a defamation context, "the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676 (1966). A public official's position "must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Id. at 86 n.13, 86 S.Ct. at 677 n.13. While not every public employee is a public official, the rule is not limited to the upper echelons of government. Villarreal v. Harte-Hanks Commc'ns, Inc., 787 S.W.2d 131, 134 (Tex. App.-Corpus Christi 1990, writ denied).

         Elected city councilmembers and candidates for city council are public officials. See Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708, at *12 (Tex. App.- Fort Worth May 18, 2017, no pet.) (mem. op.) ("[A] 'public official' includes anyone who holds, by election or appointment, a public office."); Colson v. Grohman, 24 S.W.3d 414, 420 (Tex. App.-Houston [1st Dist.] 2000, pet. denied) (same); Ross v. Labatt, 894 S.W.2d 393, 395 (Tex. App.-San Antonio 1994, writ dism'd w.o.j.) (same). Although the parties disagree as to whether Fernandez was still a city councilmember at the time of the allegedly defamatory statements, it is undisputed that Fernandez was a city councilmember from 2011 through at least 2017. Thus, Fernandez was a public official while he was a city councilmember and a candidate for city council. See Schofield, 2017 WL 2180708, at *12.

         But according to Fernandez's affidavit testimony, he resigned from city council on May 2, 2017, and all of the disputed statements occurred after his resignation. So, we must decide if Fernandez as a former public official was still a public figure or if he lost that status after resigning from his public office. Because neither the parties' briefs nor our research revealed that any Texas courts have addressed this issue, we will look to federal case law for guidance. Cf. McLemore, 978 S.W.2d at 571-72 (adopting the Fifth Circuit's three-part test in defamation case to assess whether an individual is a limited-purpose public figure); Schofield, 2017 WL 2180708, at *12 ("In this [public figure] determination, federal, not state, standards apply.").

         The Supreme Court of the United States has not yet decided "whether or when an individual who was once a public figure may lose that status by the passage of time." Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 166 n.7, 99 S.Ct. 2701, 2706 n.7 (1979). However, both the United States Supreme Court and the Fifth Circuit Court of Appeals have suggested that "there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule." Rosenblatt, 383 U.S. at 87 n.14, 86 S.Ct. at 676 n.14; Belli v. Orlando Daily Newspapers, 389 F.2d 579, 588 (5th Cir. 1967) (quoting Rosenblatt).

         In Zerangue v. TSP Newspapers, Inc., the Fifth Circuit considered and rejected the plaintiffs' contention "that the passage of nearly six years between their discharge [from public office] and the publication of the two [allegedly defamatory] articles had returned them to private figure status." 814 F.2d 1066, 1069 (5th Cir. 1987). The Fifth Circuit noted that the plaintiffs "cite[d] no cases holding that public official status erodes with the passage of time." Id. Indeed, the Fifth Circuit recognized that other jurisdictions have held that "ex-public officials must prove that 'actual malice' prompted speech concerning their in-office activities." See id. (collecting cases); cf. Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 435-36 (5th Cir. 1987) (concluding that once an individual becomes a public figure, he "cannot erase his public-figure status by limiting public comment and maintaining a low public profile").

         We agree with this reasoning and hold that based on the specific facts of this case, Fernandez, as a former public official, was a public figure with respect to the publication of the challenged statements because such a short time (less than one year) had passed between his resignation and the allegedly defamatory statements, and because the statements related to his conduct while he was a public official as well as his resignation from city council and his subsequent activity and involvement in the political campaign to recall Joplin.[6] See Scruggs v. City of Bowie, No. 7:14-cv-00129-O, 2015 WL 13450692, at *4 (N.D. Tex. Dec. 17, 2015) (order) (holding former police officer was still public figure with respect to defamation claims stemming from published statements in press release after his termination).

         Accordingly, in step two of the TCPA analysis, Fernandez must establish that Appellants made the allegedly defamatory statements under the actual malice standard.

         2. First Element - Falsity of Statements

         There is no dispute that the challenged statements made in a Facebook message, in Facebook video captions, and in the videos themselves were published. Therefore, we focus our analysis of the first element on whether Fernandez set forth clear and specific evidence that the statements were false. Bentley v. Bunton, 94 S.W.3d 561, 586-87 (Tex. 2002) (explaining that when the plaintiff is a public official, he must initially prove that defamatory statements made about ...

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